Discussion of current legal issues

President Donald Trump looks up toward the Solar Eclipse on the Truman Balcony at the White House on August 21, 2017.

During the solar eclipse August 21, 2017, President Donald Trump stepped onto the White House balcony with his wife and his son Barron, and he looked up at the sun. He pointed up at the eclipse and looked directly at it with his eyes unprotected. An aide shouted a warning that he should not look at the sun. Nevertheless, he persisted. In so doing Trump displayed his ignorance, no, his refusal to heed warnings from science.

"The retina may translate light into an electrical impulse that the brain understands, but one thing it can't translate to your brain is pain. So even if you're excited about the eclipse and think one brief glimpse at the sun before it completely hides behind the moon is worth it -- it's not. There's no internal trigger that is going to let you know that you've looked at the sun for too long. Any amount of looking at it is too long.Even the smallest amount of exposure can cause blurry vision or temporary blindness. The problem is, you won't know whether it's temporary."

Trump clearly did not learn the practical benefits of science as taught by Thales of Miletus (who by the way predicted the solar eclipse of May 28, 585 BC.). Aristotle (in part XI of Book 1 of his ‘Politics’) relates the tale.

Thales was a man of science who looked at the sky and studied the movements of the wind and the stars. Critics complained he was a man who literally had his head in the clouds. “ Why do you heed him?” they would say, “ he only questions the good of riches and worldly pleasures because he cannot get them. He is like the fox in the fable – he only calls the grapes sour because they hang way out of his reach.”

However, there came a time for Thales to silence his critics. Thales put a deposit during the winter on all the olive-presses in Chios and Miletus, which would allow him exclusive use of the presses after the harvest. Because the harvest was in the future, and nobody could be sure whether the harvest would be plentiful or not, he was able to secure the contracts for a very low price. In fact, we are informed that there was not one bid against him. From the olive press owners’ point of view, they were protecting themselves against a poor harvest by earning at least some money up front regardless of how things turned out.

Thales’ bet paid off, big time. The harvest was excellent and there was heavy demand for the presses. Thales held the monopoly and was able to rent them out at a huge profit. Thales knowledge of astronomy and weather allowed him to be an expert forecaster of a good harvest making an enormous profit.

Thales had silenced his critics. Never again should anyone suggest that learning could not reap practical benefits. Moreover, Thales demonstrated that those who seek knowledge are not necessarily too foolish to succeed in worldly affairs. “Thus he showed the world that philosophers can easily be rich if they like, but that their ambition is of another sort”, wrote Aristotle.

Today, America is two societies: one incarcerated and one not. America is two societies which are separate and unequal, especially regarding the civil right to vote. Nationally, statistics demonstrate African American men are much more likely to be incarcerated than White men, and that a very high proportion of Black men spend some time in prison. Sadly, researchers have determined that one third to two thirds of the 100,000 poorest black male three-year olds of today will eventually end up in prison. Marc Mauer and Tracy Huling, “Young Black Americans and the Criminal Justice System: Five Years,” The Sentencing Project[1] (October 1995), http://www.sentencingproject.org/doc/publications/rd_youngblack_5yrslater.pdf See also, Thomas Bonczar and Allen Beck, ‘Lifetime Likelihood of Going to State or Federal Prison’, Bureau of Justice Statistics Special Report, Washington, BJS, March 1997, p. 1; http://bjs.ojp.usdoj.gov/content/pub/pdf/Llgsfp.pdf , for a state-by-state analysis, see Marc Mauer, ‘Racial Disparities in Prison Getting Worse in the 1990s’, Overcrowded Times, vol. 8, no. 1, February 1997, pp. 9–13. It must be recalled that if you have been convicted of a felony and are serving that felony sentence, you cannot vote. This means that a very high proportion of Black men will spend some time in or out of prison with no way to protest political grievances by voting. This creates a feeling of hopelessness mentioned in the Kerner Report.

Michelle Alexander explains the consequences of this disproportionate minority confinement:

In the era of colorblindness, it is no longer socially permissible to use race, explicitly, as a justification for discrimination, exclusion, and social contempt. So we don’t. Rather than rely on race, we use our criminal justice system to label people of color “criminals” and then engage in all the practices we supposedly left behind. Today it is perfectly legal to discriminate against criminals in nearly all the ways that it was once legal to discriminate against African Americans. Once you’re labeled a felon, the old forms of discrimination—employment discrimination, housing discrimination, denial of the right to vote, denial of educational opportunity, denial of food stamps and other public benefits, and exclusion from jury service—are suddenly legal. As a criminal, you have scarcely more rights, and arguably less respect, than a black man living in Alabama at the height of Jim Crow. We have not ended racial caste in America; we have merely redesigned it. Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness p.2 (2010)

Ms. Alexander further explained that “mass incarceration in the United States had, in fact, emerged as a stunningly comprehensive and well-disguised system of racialized social control that functions in a manner strikingly similar to Jim Crow.” Id at 4. “As is well known, disproportionately many African Americans pass through the justice system, and consequently the impact of disqualification for felony conviction is especially dramatic for the black electorate. Nearly 7 percent of black Americans cannot participate in the electoral process because of felony convictions. Because 95 percent of felons are male, the felony disfranchisement rate for black men is almost double. All but one state, Hawaii, records felony disfranchisement rates for blacks that are larger than disfranchisement rates for whites and others, in most cases several times larger.” Florida Advisory Committee to the United States Commission on Civil Rights Ex-felon voting rights in Florida, (August 2008), p. 1-2, http://www.usccr.gov/pubs/EX-FelonVRFL.pdf

The following statistics demonstrate the accuracy of these statements.

“Since 1980, the United States has engaged in the largest and most frentic correctional buildup of any country in the history of the world. During this time the number of Americans imprisoned has tripled to 1.5 million. About 50 million criminal records – enough to cover nearly one-fifth of the entire U.S. population – are stuffed into police files. . . . The increase in prison population did not reduce crime, nor did it make Americans feel safer. In fact, some criminologists have argued that the overuse of the penal system for so many small-time offenders has actually created more crime than it prevented.” Steven R. Donziger, Ed., The Real War on Crime: The Report of the National Criminal Justice Commission (Harper Perennial 1996) p.32-33.

A study by the National Council on Crime & Delinquency predicts that, if all 50 states were to fully implement all of the get-tough measures that now only some have adopted, the prison population would soon rise to 7.5 million at an annual cost of $221 billion—compare the total 1995 U.S. defense budget at $269 billion. Id. at 36. Wisconsin Elections Board Director Kevin Kennedy has indicated that allowing ex -felons to vote would actually save about $13,000 by eliminating the need to generate lists of ex-felons for poll workers to check. Gil Halsted, Wisconsin Public Radio, Wisconsin voting bill would grant voting privilege to ex-felons, August 30, 2009, http://fox21online.com/news/wisconsin-voting-bill-would-grant-voting-privilege-ex-felons

Professor of Sociology at the University of Wisconsin Madison Pamela E. Oliver explains:The United States now has the highest incarceration rate in the world, 690 people per 100,000—a rate that is four to six times higher than that of most other nations. Incarceration is, moreover, very unevenly spread across the population, and particularly impinges upon blacks and Hispanics. The imprisonment rate of black American men is over eight times greater than that of European Americans. Young black men are even more severely affected. Federal statisticians at the Bureau of Justice Statistics now estimate that the “lifetime expectancy” that a young black man will spend time in prison is about 29 percent. For Hispanics, the rate of imprisonment is about three times higher than that of European Americans. . . . The rates of prison admissions as a proportion of population for both races were relatively stable until about 1975. Thereafter, the imprisonment rates of both races rose very rapidly, but far faster for blacks than for whites. . . . . Although nearly everyone in prison has committed a crime, the rise in imprisonment since the 1970s is not explained by crime rates, but by changes in policies related to crime. Pamela E. Oliver, Racial disparities in imprisonment: Some basic information, 21 Focus 28 (2001).

In 1990, almost one in four (23%) of African American males in the age group 20-29 was in prison, jail, on probation or on parole. Marc Mauer, “Young Black Men and the Criminal Justice System: A Growing National Problem,” The Sentencing Project (February 1990). Last year, the Pew Center on the States clearly stated:Three decades of growth in America’s prison population has quietly nudged the nation across a sobering threshold: for the first time, more than one in every 100 adults is now confined in an American jail or prison. According to figures gathered and analyzed by the Pew Public Safety Performance Project, the number of people behind bars in the United States continued to climb in 2007, saddling cash-strapped states with soaring costs they can ill afford and failing to have a clear impact either on recidivism or overall crime. Onein 100: Behind Bars in America 2008, p.3http://www.pewcenteronthestates.org/uploadedFiles/8015PCTS_Prison08_FINAL_2-1-1_FORWEB.pdf

Even worse it was found:That statistic masks far higher incarceration rates by race, age and gender. A separate analysis of midyear 2006 data from the U.S. Department of Justice shows that for Hispanic and black men, for instance, imprisonment is a far more prevalent reality than it is for white men. . . . Men still are roughly 10 times more likely to be in jail or prison, but the female population is burgeoning at a far brisker pace. For black women in their mid- to late-30s, the incarceration rate also has hit the 1-in- 100 mark. Id

That is only part of the ugly picture. The preceding statistics refer only to individuals who have been convicted and confined. Those numbers fail to take into account individuals who have been convicted butnot confined being under some form of supervision by a state department of corrections. “The escalation of the prison population has been astonishing, but it hasn’t been the largest area of growth in the criminal justice system. That would be probation and parole—the sentenced offenders who are not behind bars.” One in 31: The Long Reach of American Corrections, March 2009, p. 1, http://www.pewcenteronthestates.org/uploadedFiles/PSPP_1in31_report_FINAL_WEB_3-26-09.pdf With far less media attention to this booming population, the Pew Center on the States found that:the number of people on probation or parole has skyrocketed to more than 5 million, up from 1.6 million just 25 years ago. This means that 1 in 45 adults in the United States is now under criminal justice supervision in the community, and that combined with those in prison and jail, a stunning 1 in every 31 adults, or 3.2 percent, is under some form of correctional control. The rates are drastically elevated for men (1 in 18) and blacks (1 in 11) and are even higher in some high-crime inner-city neighborhoods. Id. Emphasis added.

These statistics by the Pew Center for the States cannot be dismissed or rejected as aberrations. Similar statistical determinations have been found by other social researchers: Blumstein-Graddy Study of 1968 to 1977 arrest statistics (a nonwhite male was three and a half times more likely to have a felony arrest on his record than was a white male. Whereas only 14% of white males would be arrested, 51% of nonwhite males could anticipate being arrested for a felony at some time during their lifetimes.); Tillman Study of 1974 to 1986 arrest records in California (two-thirds of the nonwhite adult males had been arrested and jailed before completing their twenty-ninth year (41% for felonies)); Rand Corporation Study of 1985 to 1987 arrest and charging record for the District of Columbia (The data also permit estimates of the risk that a black male of a particular age (18-29) resident in the District might be charged with a criminal offense, drug or otherwise, in the three-year period 1985-1987. That fraction is almost one-third for persons aged 19 in 1986. It does not decline noticeably over the age range 20-29, as other studies of crime rates in the general population have suggested); Sentencing Project Survey of 1989 (on an average day in the United States, one of every four African American men age twenty to twenty-nine was either in prison or jail or on probation or parole) The National Center on Institutions and Alternatives Studies of 1991(on an average day in 1991, more than four in ten (42%) of all the eighteen to thirty-five year-old African American males who lived in the District of Columbia were in jail, in prison, on probation or parole, out on bond, or subjects of arrest warrants); The California Commission on the Status of African Americans of 1960 to 1993 (one-sixth (104,000) of California's 625,000 black men sixteen and older are arrested each year, thereby "creating police records which hinder later job prospects and 92% of the black men arrested by police on drug charges were subsequently released for lack of evidence or inadmissible evidence. Finally, Black men, who made up only 3% of California's population, accounted for 40% of those entering state prisons. Between 1960 and 1988, the relative proportion of new black felons jumped from 22% to 38%, while the proportion of white felons dropped from 58% to 31%). Each of these studies are discussed in Miller, From safety Net to Dragnet: African American Males in the Criminal Justice System, 51 WASH. & LEE L. Rev. 479 (1994). As Mr. Miller concludes: “The markers for the social disaster that is now overtaking black males in the United States have been there for a long time.” Id. at 484.[2]

[1] While it is true that the Sentencing Project is a non-profit organization advocating sentencing reform, the Sentencing Project “has built a credible body of objective research” on sentencing. Wisconsin Sentencing Commission, Race and Sentencing In Wisconsin: A Monograph Series, Report Number 1, p.6 (November 2004).

[2] It should be noted to this Court that as of January 1, 2010, there were 1,404,053 persons under the jurisdiction of state prison authorities, 4,777 (0.3 percent) less than on December 31, 2008. This marks the first year-to-year drop in the nation’s state prison population since 1972. Pew Survey Shows State Prison Population Dropped in 2009, http://www.pewcenteronthestates.org/news_room_detail.aspx?id=57793

The Wisconsin Juvenile Court Intake Association, the professional organization that represents Wisconsin juvenile court intake workers, has explained that there is “[a] wealth of recent research in adolescent brain development indicates that most adolescents simply do not act like adults. They lack the capacity to consistently make behavioral choices based on long-term planning and reasoning. Neuropsychological research shows that important aspects of brain maturation remain incomplete until well after age 21.” Wisconsin Juvenile Court Intake Association, Statement of Philosophy One key example is that “[w]hen adolescents make choices involving risk, they do not engage the higher-thinking, decision-and-reward areas of the brain as much as adults do. This can lead adolescents to actually overstate rewards without fully evaluating the long-term consequences or risks involved in a situation.” Neir Eshel et al., “Neural Substrates of Choice Selection in Adults and Adolescents,” Neuropsychologia 45, no. 6 (2007): 1270–1279. This is because the limbic system, which helps to process and manage emotion, is developing during adolescence so that adolescents experience more mood swings and impulsive behavior than adults. Rebecca L. McNamee, “An Overview of the Science of Brain Development,” (slide presentation, dated May 5, 2006), at http://www.juvjustice.org/sites/default/files/resource-files/resource_108.pdf. Researchers therefore posit that the courts may wish to consider the notion that individuals are “less guilty by reason of adolescence.” MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice, “Issue Brief 3: Less Guilty by Reason of Adolescence,” Philadelphia, PA, 2006, http://www.adjj.org/downloads/6093issue_brief_3.pdf. A 2013 report from the National Research Council, “Reforming Juvenile Justice: A Developmental Approach,”http://www.nap.edu/catalog/14685/reforming-juvenile-justice-a-developmental-approach, suggests that legal responses to juvenile crime should take into consideration that an “imbalance in developing brains” is linked to a poorer ability to self-regulate and make decisions. See also, Gately, “Experts: Brain Development Should Play Bigger Role in Determining Treatment of Juvenile Offenders”Juvenile Justice Information Exchange (2013), http://jjie.org/experts-brain-development-should-play-bigger-role-in-determining-treatment-of-juvenile-offenders/105927/Courts now recognize this science. For instance, in Roper v. Simmons, 543 U.S. 551; 125 S. Ct. 1183, 1190 (2005), the United States Supreme Court noted that “we have established the propriety and affirmed the necessity of referring to the ‘evolving standards of decency that mark the progress of a maturing society’ to determine which punishments are so disproportionate as to be cruel and unusual.” Id. citing Trop v. Dallas, 356 U.S. 86, 100-101, 78 S. Ct. 590 (1958). The Constitution does not permit a court to dispose of a juvenile case by a categorical approach without consideration of a juvenile’s chronological age and the hallmark features of being a juvenile— immaturity, impetuosity, and failure to appreciate risks and consequences –as well as the juvenile’s family and home environment that surrounds him. Miller v. Alabama, 567 U.S. 460, slip at 15 (2012)Three significant differences which impact juveniles’ culpability were identified in Roper v. Simmons. First, “[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.” Id. at 1195. “The susceptibility of juveniles to immature and irresponsive behavior means their irresponsible conduct is not as morally reprehensible as that of an adult.” Id; citing Thompson v. Oklahoma, 487 U.S. 815, 815, 108 S. Ct. 2687 (1998). Second, juveniles are more susceptible to outside influence and peer pressure than adults. Id. “Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment.” Id; See, Stanford v. Kentucky, 492 U.S. 361, 395 (1989) (Brennan J. dissenting) The third significant difference that impacts culpability is that the character of juveniles is not yet well-formed and, therefore, juvenile personality traits are more transitory than those of adults. Id. “From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed…For most teens, [risky or antisocial] behaviors are fleeting; they cease with maturity as individual identity becomes settled. Only a relatively small proportion of adolescents who experiment in risky or illegal activities develop entrenched patterns of problem behavior that persist into adulthood.” Id. at 1196; citing Steinberg & Scott “Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 Am. Psychologist, 1009, 1014 (2003). Finally, in Graham v. Florida, 560 U.S. 48 (2010) it was found that because juvenile’s have diminished culpability there exists a greater prospect for reform. The scientific studies detailed in the amici briefs submitted in Roper(and relied on by the Court) explain that the differences in juvenile and adult culpability result from the anatomically underdeveloped nature of the juvenile brain. See Brief of Amici Curiae, American Psychological Association, et. al. (“APA Brief”), https://www.apa.org/about/offices/ogc/amicus/roper.pdf and Brief of Amici Curiae, American Medical Association et al. (“AMA Brief”), http://fairsentencingofyouth.org/wp-content/uploads/2014/04/Roper-v.-Simmons-Amicus-Brief-American-Medical-Association-et.-al..pdf. These fundamental differences between juveniles and adults are rooted in very real biological differences between juvenile and adult brains. Modern brain research technology, specifically high resolution magnetic resonance imaging (MRI), has allowed scientists to see that juveniles’ immature behavior is based on “deficiencies in the way adolescents think” that result from the “anatomical immaturity of their brains.” AMA Brief at 6, 10. These studies have revealed that “regions of the adolescent brain do not reach a fully mature state until after the age of 18,” and that “psychological maturity is incomplete until age 19.” Id. More particularly, these studies have led to two important observations that have enabled scientists to understand juveniles’ behavior and its anatomical basis. Id. at 11. “First, adolescents rely for certain tasks, more than adults, on the amygdale, the area of the brain associated with primitive impulses of aggression, anger and fear. Adults, on the other hand, tend to process similar information through the frontal cortex, a cerebral area associated with impulse control and good judgment.” Id. The frontal lobes of the brain, which are tied to “a variety of cognitive abilities including decision making, risk assessment, ability to judge future consequences, evaluating reward and punishment, behavioral inhibition, impulse control, deception, responses to positive and negative feedback and making moral judgments,” exert control over the amygdale, which is associated with aggressive and impulsive behavior. Id. at 13-15. However, a still maturing frontal lobe in juveniles is less able to exert control over the amygdale (associated with impulsive and aggressive behavior) than does a fully mature frontal lobe in adults. Id. at 14-15. As teenagers age into adults, the focus of the brain activity shifts from the amygdale to the frontal lobes. Id. at 15. The second scientific observation that affects our modern understanding of juvenile brain development is the discovery that “the regions of the brain associated with impulse control, risk assessment and moral reasoning develop last.” Id. at 11; see also APA Brief at 10-12. Brain imaging studies have confirmed that the frontal lobes of the brain are structurally immature well into late adolescence and beyond:The new brain imaging data, supported by data gathered through the older autopsy technique, provides credible evidence that the frontal lobes, which are still developing into adolescence and beyond, are among the last portions of the brain to mature. In other words, the region of the brain associated with impulse control, risk assessment and moral reasoning is the last to form, and is not complete until late adolescence or beyond.” Id. at 18. Emphasis added. This has led researchers to conclude that regions of the brain are not fully developed until at least age 18, and “(a)dolescents as a group, even at the age of 16 or 17, are more impulsive than adults. They underestimate risks and overvalue short-term benefits. They are more susceptible to stress, more emotionally volatile, and less capable of controlling their emotions than adults.” Id. at 2. Relying on the submitted scientific research, the Roper Court concluded that the differences between juveniles and adults “render suspect any conclusion that a juvenile falls among the worst offenders.” Roper, 125 S. Ct at 1195. The Court explained:The susceptibility of juveniles to immature and irresponsible behavior means ‘their irresponsible conduct is not morally reprehensible as that of an adult.’ Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. The reality that juveniles still struggle to define their own identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed…once the diminished culpability of juveniles is recognized, it is evident that the penalogical justifications for the death penalty apply to them with lesser force than to adults. Id. at 1195-96. Emphasis added.